YA1034502 


WAR 
PRISONERS 


BY 

CLARENCE  S.  DARROW 


Prisoners 


THE  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 

ADDRESS  BY 
f  ._ 

CLARBFCE:IS.  DARROW 


AT  THE 


Garrick  Theatre,  Chicago,  Illinois 

NOVEMBER  9,  1919 


MACLASKEY  &  MACLASKEY, 
Court  Reporters 
CHICAGO 


JOHN  F.  HIGGINS,  PRINTER  AND  BINDER 
376-380  WEST  MONROE  STREET.  CHIC460 


WAR  PRISONERS 

I  am  not  certain  whether  I  shall  please  many  of  you  in  my 
view  of  this  subject.  Anyhow,  I  mean  to  discuss  it  honestly 
with  myself,  and  I  am  not  interested  in  whether  anybody  ac- 
cepts my  views  or  not.  If  they  accept  them,  I  have  more  re- 
sponsibility, because  the  views  may  be  wrong. 

I  want  to  discuss  this  subject  from  the  standpoint  of  man, 
as  he  is,  not  as  he  will  be  under  the  socialistic  commonwealth 
or  any  other  ideal  or  impossible  state  of  society.  I  want  to 
discuss  it  with  reference  to  today  and  the  near  future,  which  is 
a  million  years  anyhow;  and  with  man  as  man,  or  rather  man 
as  one  of  the  animal  creation — more  intelligent  than  the  ape, 
but  ruled  by  the  same  emotions  as  the  rest  of  the  brute  crea- 
tion. Those  emotions,  feelings,  perhaps  are  somewhat  modi- 
fied by  a  larger  brain,  but  still  essentially,  and  for  all  scientific 
purposes,  are  like  that  of  the  so-called  lower  animals. 

Fine-spun  theories  about  what  society  ought  to  be,  to  my 
mind,  have  little  place  in  a  discussion  of  this  sort.  The  scien- 
tist takes  man  as  he  is  and  discusses  questions  with  reference 
to  that,  and  does  not  expect  to  judge  his  flying  qualities,  for 
instance,  by  the  bird,  his  swimming  qualities  by  the  fish,  or 
his  spiritual  qualities  by  angels.  That  is  the  way  I  take  him; 
and  that  is  the  way  I  wish  to  take  him  for  this  discussion. 

I  approach  this  question  as  one  who  believed  in  this  war. 
Not  because  I  love  war;  for  I  hate  it.  Not  because  I  do  not 
wish  that  in  the  economy  of  nature  there  might  be  something 
else.  But  I  believe  that  man  is  a  fighting  animal,  and  that  the 
United  States  had  nothing  to  do  but  fight.  I  shall  discuss  it 
from  the  standpoint  of  one  who,  from  the  time  Belgium  was 
invaded,  believed  that  it  was  the  duty  of  the  civilized  world 
to  drive  the  last  German  back  to  the  Fatherland!  And  this, 
utterly  regardless  of  whether  those  Germans  were  better  or 
worse  than  the  people  who  were  driving  them  back. 

I  believe  in  man  as  a  mechanism,  and  an  imperfect  one  at 
that,  and  I  considered  the  invasion  of  the  Germans  into  France 
and  Belgium  just  the  same  as  I  would  have  considered  the  ris- 
ing of  a  tide  that  should  be  stopped  for  the  protection  of  the 
people  that  it  would  overrun.  I  discuss  it  as  a  man  who  be- 
lieved that  the  duty  of  the  United  States'  government  was 
plain;  that  to  protect  our  integrity  and  dignity  as  a  nation  we 
had  to  fight,  serious  as  that  fight  was,  and  much  as  war  meant. 

5 


1034502 


6  WAR  PRISONERS. 

I  cannot  discuss  it  in  any  other  way.     I  believed  in  it  then.      I 
believe  in  it  now. 

The  question  to  me  as  to  this  line  of  prisoners  coming 
from  the  war  is  not  what  was  the  duty  of  the  United  States 
during  the  war,  but  the  duty  of  the  United  States,  now  that 
the  war  is  finished,  and  the  need  is  gone. 

I  believe  that  the  first  law  of  nature  is  self-preservation 
and  that  this  law  applies  to  nations  as  well  as  to  individuals. 
And,  I  can  imagine  no  state  of  society  where  it  will  not  apply 
to  nations  as  well  as  to  individuals.  And  I  can  say  this,  assum- 
ing that  a  time  comes  in  many  nations  when  they  should  be 
overthrown,  or  destroyed,  and  not  even  assuming  that  our 
nation  will  be  an  exception  to  the  rest.  The  instinct  of  life 
goes  with  living;  and  this  is  true  with  the  individual,  the  fam- 
ily, the  community,  the  state,  the  nation,  and  the  race.  Self- 
preservation  is  the  highest  of  all  laws,  and  I  believe  it  is  so  rec- 
ognized by  every  one  in  their  own  conduct,  if  not  in  their 
philosophy. 

I  have  heard  many  men,  and  women,  for  whom  I  have  a 
high  regard,  complain  of  the  violation  of  "Constitutional 
rights"  during  the  war.  Now,  I  try  to  be  honest  with  myself, 
at  least.  I  have  no  doubt  but  what  constitutional  rights  were 
violated  over  and  over  again  during  the  war,  and  since — and 
before.  In  the  main,  I,  as  one  individual,  was  willing  to  see 
constitutional  rights  violated  during  the  war.  I  would  have 
hoped,  and  did  wish  that  there  might  be  fewer  of  those  vio- 
lations; that  the  barbarous  and  medieval  penalties  might  be 
less  severe,  and  of  course  that  all  the  people  I  know  would 
escape — but  that  is  a  personal  emtion.  At  the  same  time, 
believing  as  I  did  in  this  war,  that  it  was  just  and  necessary, 
that  the  first  law  of  individuals  and  nations  is  self-preservation, 
I  did  not  worry  so  much  about  the  means  of  self-preservation. 

The  most  ardent  pacifist;  the  most  ardent  friend  and  be- 
liever in  the  release  of  all  conscientious  objectors  and  all  war 
prisoners — none  of  these  people  really  care  much  for  consti- 
tutional rights.  They  believe,  like  everybody  else,  in  having 
their  own  way.  They  are  strong  for  constitutional  rights  when 
they  think  those  constitutional  rights  will  help  their  cause. 
And  they  do  not  believe  in  the  constitutional  rights  of  other 
people  when  they  think  they  will  hurt  their  cause.  I  have  seen 
few  radicals  who  were  against  the  war,  from  whatever  motive, 
who  were  not  strong  for  the  government  of  Lenine  and  Trot- 
sky in  Russia.  Now,  my  sympathies  are  with  them,  as  against 


WAR  PRISONERS.  7 

the  old  regime.  I  know  that  they  have  committed  atrocities. 
I  know  that  they  have  disregarded  the  rights  of  individuals, 
which  are  deeper  than  constitutional  rights.  I  know  that  they 
have  killed  almost  indiscriminately,  and  everybody  else  knows 
it.  I  believe  also  that  they  did  what  seemed  necessary  to  do 
to  maintain  themselves.  And  of  all  the  excuses  that  were 
made  for  them,  the  chief  one  is  that  the  world  was  against 
them  and  they  had  to  do  it!  They  did  have  to  do  it?  Every 
body  of  people  who  are  undertaking  to  accomplish  something, 
like  every  individual  who  is  undertaking  to  accomplish  some- 
thing, seldom  bothers  about  trifles.  The  thing  to  be  done  is  to 
be  done.  And,  if  laws  and  institutions  and  constitutions  are  in 
the  way,  so  much  the  worse  for  laws  and  institutions  and  con- 
stitutions! 

Now,  you  people,  who  are  disciples  of  Bolshevism — what- 
ever that  is — all  believe  it,  and  yet  you  cannot  help  criticising 
the  American  government  for  violation  of  constitutional  rights 
in  which  you  do  not  believe  yourselves!  The  person  who  com- 
plains about  constitutional  rights  does  not  do  it  out  of  any  love 
for  constitutional  rights.  He  does  it  because  he  and  his  friends 
are  hurt.  And,  if  he  and  his  friends  could  win,  a  little  matter 
of  the  constitution  would  not  stop  him,  and  it  stops  nobody. 

Let  me  go  a  little  deeper  into  that  because  I  want  to  make 
it  clear.  What  are  constitutions  and  laws?  They  are  simply 
the  customs  and  traditions  and  habits  of  people  written  into 
statutes  and  constitutions.  They  are  embedded  there  until 
they  are  a  part  of  the  foundation,  and  it  takes  some  violent 
revolution,  either  with  force  or  without  it,  to  change  them.  It 
is  a  simple  matter.  That  is  exactly  the  meaning  of  a  constitu- 
tion. And  all  law  and  much  of  the  progress  of  the  world  has 
been  made  in  absolute  violation  of  constitutions  and  laws  and 
everybody  knows  it. 

And  deeper  than  constitutions  and  laws  is  the  will  of  the 
people,  and  when  that  will  is  strong  enough — I  do  not  care 
who  the  people  are,  whether  socialists  or  capitalists  or  philoso- 
phers— when  the  will  of  the  people  is  strong  enough,  it  over- 
rides them.  It  always  has,  and  it  always  will.  So,  to  my 
mind,  it  amounts  to  nothing,  for  nobody  pays  any  attention  to 
it  unless  it  serves  his  purpose.  I  prefer  to  meet  this  question 
squarely  upon  the  facts  of  life  and  upon  the  philosophy  of  ex- 
istence and  of  government. 

Man  persists.  He  lived  long  before  any  constitutions  were 
made;  he  wrote  his  constitutions  out  of  human  life  and  human 


8  \VAR  PRISONERS. 

experience;  and  he  will  be  here  probably  long  after  all  con- 
stitutions die.  He  and  his  life  are  the  fundamental  things, 
and  nothing  can  get  in  the  way  of  man  and  his  life;  nothing 
can  get  in  the  way  of  it  that  does  not  meet  with  a  catastrophe. 
The  people,  if  you  get  enough  of  them,  are  supreme.  I  am  not 
obsessed  with  the  people.  They  are  cruel;  they  are  unimagi- 
native; they  are  unintelligent  to  the  last  extreme.  Long  ago  1 
stopped  passing  panegyrics  on  the  people.  But  this  is  true 
about  them,  when  you  get  enough  of  them  thinking  the  same 
way  on  any  subject  they  have  their  way!  And,  the  last  thing 
they  stop  to  inquire  about  is  whether  their  way  is  "constitu- 
tional" or  not! 

I  know  there  are  lawyers  of  more  or  less  integrity  and 
scholarship  who  say  there  have  been  no  convictions  during 
this  war,  on  account  of  freedom  of  thought  and  speech;  that 
there  have  been  no  restrictions  on  constitutional  liberty.  I  do 
not  wish  to  cloud  this  issue  in  any  such  way.  Men  have  been 
sent  to  prison  during  the  last  two  years  for  expressing  their 
honest  conviction.  They  have  been  sent  to  prison  for  speak- 
ing freely  the  things  they  could  have  spoken  before  the  war 
started.  Everybody  knows  it,  whatever  they  say.  There  is 
one  excuse  the  government  had,  and  only  one,  and  to  my 
mind  this  excuse  is  quiet  sufficient.  And  that  is,  that  we  are 
engaged  in  something  that  was  deep  and  fundamental,  and 
whether  everybody  agreed  with  the  government  or  not,  there 
were  enough  who  agreed,  who  thought  war  was  necessary,  to 
carry  it  on  at  the  time.  And  no  matter  who  the  majority  is, 
however  liberal  or  radical,  or  what  it  sought,  this  majority 
would  have  done  exactly  the  same  thing.  So,  the  question  is 
not  whether  we  have  violated  the  constitution ;  the  question  is, 
what  should  be  done  now? 

All  these  things  are  easily  understood  by  one  who,  for  a 
few  moments  will  forget  his  point  of  view,  and  try  to  look 
the  facts  in  the  face.  I  do  not  ask  anybody  to  believe  that  this 
war  was  just.  If  you  can  imagine  a  war,  as  most  of  you  can, 
which  you  would  think  was  just,  as  for  instance,  a  class  war, 
you  know  you  would  do  just  the  same  as  the  others  did.  And 
you  know  just  the  same  thing  has  been  done  in  Russia.  And 
nobody  can  say  it  was  right  or  that  it  was  wrong.  It  was  just 
in  the  nature  of  things,  like  a  glacier  plowing  its  way  across 
the  continent,  nothing  else.  I  have  talked  with  a  good  many 
pacifists  who  said  they  did  not  believe  in  war;  but  I  have 
noticed  how  their  eyes  kindled  and  their  cheeks  reddened 
when  they  heard  of  a  victory  of  the  Bolsheviks!  Nobody  liv- 


WAR  PRISONERS.  9 

ing  is  indifferent  to  war.  Nobody  living  who  can  reach  that 
state  of  philosophical  nothingness  so  they  can  look  at  a  dog 
fight  and  not  choose  their  dog.  It  is  not  human  nature,  be- 
cause man  does  not  live  by  intellect.  If  he  did  life  would  be 
short!  He  lives  by  human  feelings,  and  human  emotions, 
which  are  the  moving  forces  of  life,  and  his  sympathies  and 
feelings  go  out,  and  he  takes  sides.  When  anybody  tells  me 
they  didn't  care  who  won,  I — well,  what  is  the  use  of  saying? 

I  was  sorry  to  see  many  people  sent  to  prison.  I  do  not 
believe  in  prisons,  anyway.  I  knew  that  a  great  injustice  was 
done  individuals.  And  I  want  to  be  honest  about  this  ques- 
tion, too.  I  know  that  probably  the  great  majority  of  people 
who  were  sent  to  military  and  civil  prisons  during  this  war 
were  high-minded,  conscientious  people,  and  had  committed 
no  real  wrong;  that  is,  so  far  as  they  themselves  were  con- 
cerned, they  were  utterly  devoid  of  any  criminal  intent.  And 
criminal  intent  is  supposed,  in  law,  at  least,  to  carry  moral 
turpitude  with  it.  There  was  no  moral  turpitude  mixed  up 
with  it.  Most  of  them,  I  will  not  say  all.  But  I  must  remain 
true  to  my  philosophy  until  I  change  it — which  might  be  next 
week.  I  do  not  believe  there  is  such  a  thing  as  moral  turpi- 
tude. I  am  a  fatalist;  I  do  not  believe  in  free  will;  I  think 
every  human  being  is  a  machine,  and  has  no  more  control  over 
his  actions  than  a  "Wooden  Indian".  But,  society  sorts  out 
criminals  as  those  men  whose  acts  imply  a  moral  turpitude 
which  I  do  not  believe  in.  Under  this  definition,  most  of  the 
people  who  were  sent  to  prison  during  the  war  were  not  crimi- 
nals; there  was  no  moral  turpitude  in  it. 

Of  course,  while  1  do  not  believe  in  prisons,  I  do  believe 
that  there  are  people  who  must  be  restrained  of  their  freedom 
so  that  I  can  get  along!  Insane  people;  morons;  people  so 
distinctly  anti-social,  from  some  cause  or  other,  that  we  can- 
not live  in  any  comfort  with  them,  need  to  be  restrained,  with- 
out any  regard  to  right  or  wrong;  they  ought  to  be  given  a 
good  time,  perhaps  better  than  they  could  have  if  they  were 
not  in  prison.  But,  restraint  is  necessary,  and  I  can  imagine 
no  state  of  society  where  we  would  not  need  restraint.  So,  nf 
course,  to  one  of  my  views,  it  makes  no  difference  whether 
one  has  moral  turoitude  or  not.  The  only  question  is,  who  \? 
dangerous,  and  when  I  say  dangerous,  of  course  I  mean  dan 
gerous  to  me.  As  a  state,  I  would  say  dangerous  to  the  state. 
Of  course,  if  enough  people  who  were  danecero"s  to  th^  state 
could  get  together,  they  might  overthrow  *"He  state  and  send 
the  other  oeople  to  iail;  but  that  is  tbe  chance  you  take. 


10  WAR  PRISONERS. 

So,  during  the  war,  I  can  find  no  honest  criticism,  from  my 
point  of  view,  for  the  forcible  detention  of  those  who  were 
actually  in  the  way  of  carrying  it  on.  I  might  say  that  it  was 
not  the  best  way.  I  think  people  got  unduly  excited,  and  I 
think  we  were  all  a  bit  crazy  during  the  war  and  haven't  got 
over  it  yet!  I  think  the  people  could  have  been  left  to  say 
more  and  print  more  and  do  more  with  perfect  safety  to  the 
country.  And  when  I  mean  the  country,  I  mean  for  the  prose- 
cution of  the  war.  I  think  they  could,  and  I  think  they  should. 
But,  that  in  nowise  affects  the  fundamental  proposition,  which 
is  true  to  life,  and  true  in  philosophy,  that  the  individual  or  the 
state  has  the  right — I  do  not  like  to  use  the  word  "right",  for 
it  does  not  mean  anything — the  individual  or  the  state  always 
will  protect  its  life  in  great  emergencies,  and  it  will  never  be 
especially  careful  about  the  means.  Of  course,  it  may  be  care- 
ful about  the  means  when  the  danger  is  slight,  but  it  will  never 
be  careful  about  the  means  when  the  danger  is  imminent  and 
great.  Individuals  and  states  are  just  alike  in  this. 

Now,  having  said  so  much,  let  us  see  what  the  present 
situation  is.  There  are  a  great  many  things  that  the  typical 
objector  does  not  consider.  The  United  States  found  itself  in 
a  war  and  it  was  a  big  one.  In  a  very  few  months  we  made 
America  a  military  camp.  I  am  not  going  to  discuss  whether 
that  was  right  or  wrong;  I  am  going  to  assume  it  was  right.  It 
makes  no  difference  whether  it  was  right  or  wrong.  We,  the 
majority,  were  powerful  enough  to  do  it,  and  we  did  it.  This 
work  was  done  quickly.  A  stupendous  work  which  taxed  all 
the  energies  and  wealth  and  industry  of  the  country.  It  was 
done  hurriedly  and  still  with  great  efficiency,  on  the  whole. 
Mistakes,  of  course,  were  made,  even  in  the  line  of  getting  at 
the  result  intended.  But,  it  was  a  wonderful  piece  of  efficient 
work.  Officers  were  placed  in  responsible  positions  without 
training  or  skill  or  experience  to  fill  those  positions.  Courts 
martial  were  organized  by  men  who  were  in  no  way  qualified 
to  conduct  them.  And,  it  was  all  done  in  the  mad  heat  of 
war,  when  nobody  was  sane.  You  cannot  fight  when  you 
are  sane,  whether  you  fight  a  country  or  your  neighbor.  You 
must  be  mad,  which  means  crazy.  It  was  all  done  in  the 
fiercest  period  of  hatred,  deep  and  intense,  which  always  goes 
with  war,  and  which  does  not  prove  that  war  is  necessarily 
wrong.  I  am  not  interested  in  that  question,  because  it  hap- 
pened. I  would  be  very  silly  to  argue  with  an  earthquake. 
And  one  is  just  as  silly  to  argue  with  a  war  when  the  war  is  on. 

These  elemental  forces  cannot  be  argued  with.  Never 
could  be,  and,  well,  I  fancy,  I  do  not  know — but  I  fancy  never 


WAR  PRISONERS.  11 

will  be.  It  -was  absolutely  necessary  that  great  mistakes  and 
great  injustices  should  happen  in  a  machine  thrown  together  in 
this  way,  laboring  under  this  condition,  in  intense  excitement 
and  great  peril  to  the  world. 

That  mistakes  occurred;  that  they  were  serious  and  many, 
is  beyond  any  sort  of  question.  I  do  not  blame  anybody  for 
them.  They  happened ;  they  would  happen  again.  The  ques- 
tion for  me  is  what  are  we  going  to  do  about  it  now?  I  do 
not  blame  Mr.  Wilson  or  Mr.  Baker,  whom  I  have  known  for 
fifteen  years,  and  know  to  be  an  intelligent,  high-minded,  hu- 
mane man,  one  of  the  best  I  ever  knew.  Both  he  and  Mr. 
Wilson  have  so  managed  their  work  that  they  have  lost  the 
friendship  of  both  the  conservatives  and  radicals.  And  you 
are  doing  pretty  well  when  you  do  that!  I  know  one  is  doing 
well,  for  I  have  done  it  myself!  And  I  want  to  say  that  I  fully 
believe — though  it  does  not  prevent  me  from  saying  what  I 
think  on  this  question — that  I  fully  believe  it  will  not  be  very 
long  until  Mr.  Wilson  will  show  where  he  stands  on  this  ques- 
tion— that  he  stands  for  humanity  and  mercy!  Now,  you  can 
see  whether  I  have  prophesied  right  or  not.  If  he  does  not  do 
it,  it  will  not  prevent  my  saying  what  I  think  about  it!  I  think 
it  should  be  done,  and  done  quickly. 

Now,  I  am  for  giving  everybody  a  fair  show.  And  one 
should  consider  the  work  Mr.  Wilson  has  had  to  do,  the  con- 
dition of  his  health,  and  the  serious  difficulties  in  his  position, 
and  judge  honestly  instead  of  condemning,  unthinkingly.  I 
read  the  other  day  what  one  of  the  pillars  of  the  Progressive 
Party  said  about  him — Senator  Poindexter  of  out  west  some- 
where— he  said  that  President  Wilson  had  encouraged  anarch- 
ism and  bolshevism  more  than  any  other  man  in  America,  and 
both  he  and  Baker  have  received  the  most  brutal,  extreme, 
unrelenting  condemnation  by  that  class  of  people  who  pride 
themselves  as  being  one  hundred  per  cent  American — what- 
ever that  means.  So,  I  am  willing  to  suspend  judgment. 

Now,  let  us  see  some  of  the  general  causes  of  the  great 
difficulty  that  brings  about  these  mistakes.  There  are  three 
or  four  classes  of  people  that  I  want  to  speak  about.  There 
are  those  people,  some  sixteen  thousand  in  1918,  who  were 
condemned  by  courts  martial.  In  the  main  they  received  bar- 
barous, extreme  and  medieval  sentences.  What  are  some  of 
the  general  causes?  In  the  first  place,  under  an  obsolete  tra- 
dition, every  court  martial  was  made  up  of  officers;  no  private 
could  be  tried  by  privates.  He  was  tried  by  officers.  These 
officers  were  young,  inexperienced  and  clothed  with  an  ex- 


12  WAR  PRISONERS. 

traordinary  power — a  power  of  life  and  death.  And  they 
were  boys  who,  of  course,  could  not  know  much — I  was  once 
a  boy  myself.  These  were  officers  in  a  business  entirely  new 
to  them.  Every  private  was  tried  by  them,  and  ninety-four 
per  cent  of  all  the  privates  were  convicted.  Only  six  per  cent 
got  away.  When  there  was  a  charge  made  against  an  officer, 
the  officer  was  tried  by  officers.  Only  thirty  per  cent  of  the 
officers  were  convicted,  as  against  ninety-four  per  cent  of  the 
privates.  Upon  the  face  of  it,  this  system  is  far  removed  from 
democracy;  it  is  far  removed  from  what  is  better,  a  certain, 
humane  sympathy  that  goes  with  people  who  are  substantially 
alike;  it  would  be  impossible  that  great  injustices  should  not 
result,  and  the  broad  figures  show  it.  Ninety-four  per  cent  of 
the  privates  placed  on  trial  were  convicted  and  thirty  per  cent 
of  the  officers  convicted. 

They  were  defended  by  people  who  were  appointed  from 
the  regiment,  generally  not  lawyers.  It  is  all  a  lawyer  can  do 
to  defend  a  man  right.  Men,  without  experience;  boys,  utterly 
unable  to  do  the  job.  As  Colonel  John  Wigmore  said,  a  very 
large  percentage  had  no  defense  made  for  them.  They  never 
had  any  real  review  of  their  cases.  And,  military  officers,  in 
the  last  analysis,  really  pronounced  the  sentence.  If  there  was 
any  review,  it  was  not  by  a  real  court.  These  decisions  were 
really  not  judicial  decisions,  but  military  orders,  under  which 
men  were  sentenced  to  the  severest  penalties,  ranging  all  the 
way  from  one  to  ten,  twenty,  thirty,  forty,  fifty  years,  and 
death.  Then,  in  a  civil  case,  after  you  have  been  tried  and  ac- 
quitted, you  are  out  of  it;  you  cannot  be  tried  again.  But,  in 
these  military  trials,  if,  six  times  in  a  hundred,  a  boy  escaped, 
and  the  officers  at  headquarters  were  not  satisfied  with  it,  they 
could  order  a  new  trial;  and  they  did,  over  and  over  again, 
sometimes  two  or  three  times,  which  is  barbarous  in  the  ex- 
treme. 

The  sentences  were  such  as  to  shock  a  person  who  has 
had  any  experience  of  civil  life  or  the  courts.  For  instance, 
these  courts  martial  provided  for  a  review  at  headquarters, 
and  a  person  had  to  go  to  the  Adjutant  General  and  from 
there  to  the  Commander-in-Chief.  Down  in  Texas,  they  sen- 
tenced thirteen  negroes  to  death,  and  to  make  sure  of  it,  they 
killed  them  thirty  days  before  the  record  ever  got  to  the  court 
of  appeals.  A  reversal  of  the  sentence  would  have  done  no 
good.  Twelve  men,  experienced  and  old  in  the  service,  in  one 
of  the  camps,  all  non-commissioned  officers,  who  had  been  out 
somewhere  in  the  evening,  and  were  unlawfully  arrested  by 


WAR  PRISONERS.  13 

the  officers  in  charge  of  the  camp,  were  told  to  train,  stand 
formation  and  drill.  They  refused  on  the  ground  that  army- 
regulations  forbid  men  under  arrest  to  drill.  They  were  sen-, 
tenced  from  fifteen  to  twenty-five  years. 

Now,  of  course,  in  any  system  of  criminal  procedure,  the 
punishment  ought  to  bear  some  relation  to  the  offense.  Here 
were  twelve  officers  who  were  illegally  arrested,  ordered  to 
parade  and  drill  while  under  arrest,  by  young,  inexperienced 
officers,  and  they  refused.  Fifteen  to  twenty-five  years.  la 
there  any  chance  to  defend  any  such  thing?  It  is  idle  to  say 
that  these  were  times  of  war  and  military  discipline  must  be 
maintained.  It  must  be.  But  the  maintenance  of  military  dis- 
cipline does  not  call  for  any  barbarity  like  this  and  like  what 
was  commonly  practiced  in  the  sentences  in  the  camps.  Any 
number  of  these  instances  can  be  given.  One  only  has  to  look 
them  over,  read  the  history  of  them,  to  find  out  what  they 
mean. 

In  France,  on  one  occasion,  four  boys,  all  under  twenty, 
were  sentenced  to  death,  two  for  sleeping  on  their  post,  and 
two  for  disobeying  an  order  to  drill,  because  of  cold  and  ex- 
haustion. A  man  was  appointed  to  defend  them,  another  boy, 
absolutely  inexperienced,  and  he  plead  them  guilty.  They 
were  sentenced  to  death.  News  of  it  reached  Washington.  On 
investigation  it  was  shown  that  the  two  boys  who  slept  had 
been  working  so  long  that  it  was  impossible  for  them  to  keep 
awake.  The  same  has  often  happened  to  locomotive  en- 
gineers who  have  been  compelled  to  run  day  and  night  until 
exhausted.  They  could  not  help  going  to  sleep.  And  the 
others  were  so  tired  out  they  could  not  march  or  drill  and  it 
should  never  have  been  asked  of  them.  Mr.  Baker  pardoned 
two  of  these  and  reduced  the  sentence  of  death  to  three  years 
in  the  case  of  the  other  two.  And  he  did  this  against  the  pro- 
tests of  the  army  officers.  Now,  I  am  not  criticising  the  army 
officers.  Everybody  has  an  extravagant  idea  of  his  business. 
Everybody  thinks  the  world  rests  upon  him  and  his  profession, 
and  the  army  is  no  exception  to  it.  It  believes  in  discipline 
though  the  heavens  fall.  Of  course  no  one  will  question  that 
a  considerable  amount  of  discipline  is  necessary;  but  they  have 
overdone  it.  It  is  utterly  unknown  to  the  civil  law.  No  free 
people  could  consent  to  it  for  a  moment  in  times  of  peace,  and 
yet  the  whole  record  of  all  these  criminal  trials  was  substan- 
tially the  same.  Fortunately,  the  news  of  these  cases  got  to 
Mr.  Baker  in  time,  and  he  had  the  patience  to  examine  the 
papers.  Excepting  for  this  accident  and  the  humane  action 


14  WAR  PRISONERS. 

of  the  Secretary,  these  four  boys  would  have  been  shot  with- 
out having  been  defended,  without  a  chance,  and  with  no 
opportunity  to  disclose  the  facts.  There  are  instances  of  men, 
absent  without  leave,  just  left  the  camp  as  some  of  you  might 
leave  your  work  and  go  to  a  baseball  game — might;  or  to  a 
convention,  more  likely.  Some  of  them  absent  without  leave, 
for  a  few  hours,  some  under  strong  extenuating  circumstances, 
who  got  sentences  ranging  from  six  days  to  twenty-five  years. 

There  was  no  machinery  to  do  this  work  any  more  than 
there  was  machinery  for  furnishing  camps  and  cantonments. 
It  had  to  be  made  at  once  and  out  of  the  material  they  had, 
without  a  chance  to  educate  those  who  were  in  charge  of  the 
serious  business  of  judging  their  fellowmen.  And  it  is  a  seri- 
ous business,  which  needs  experience,  sober-mindedness  and 
charity.  All  of  this  was  necessarily  lacking  in  most  of  these 
trials.  One  can  take  the  records,  which  are  easily  obtainable, 
and  find  case  after  case  of  this  sort. 

Of  course  there  were  some  courts  martial  that  were  more 
humane  than  others.  Men  of  a  broader  vision.  Some  defend- 
ants better  defended  than  others.  And  there  was  the  greatest 
difference  and  diversity  in  the  various  camps  of  the  United 
States  and  in  France. 

Our  military  law  has  come  down  from  the  old-time  British 
law;  at  a  time  when  nobody  but  the  nobility  could  be  officers 
and  nobody  but  the  peasants  were  private  soldiers.  There 
were  very  few  of  the  nobility  and  a  good  many  of  the  peasants, 
which  made  the  commanders  few  and  the  army  large.  Of 
course  the  commanders  did  it  all.  England  has  modified  the 
proceedings.  So  has  France,  but  America  has  not.  I  am  not 
here  to  criticise  so  much  what  we  have  done,  although  it  is 
wrong  and  cannot  meet  the  feelings  of  justice  or  democracy 
of  the  average  American,  but  I  am  here  to  see  what  shall  be 
done  with  the  manifold  mistakes  and  cruelties  that  resulted 
from  it  all. 

I  need  not  go  over  these  cases  in  detail.  In  one  year  there 
were  sixteen  thousand  of  them.  A  court  of  review  was  abso- 
lutely powerless  to  review  them  if  it  had  been  a  court,  and  it 
was  not  a  court;  it  was  a  commanding  officer  issuing  orders. 

These  boys  really  had  no  trial  that  could  resemble  a  trial. 
They  had  no  semblance  of  what  is  called  a  trial  when  one  is 
charged  with  an  offense.  We,  in  America,  as  in  England,  have 
cherished  trial  by  jury  as  one  of  the  priceless  safeguards  of 
freedom  and  of  life.  And  yet  none  of  those  sixteen  thousand 


WAR  PRISONERS.  15 

had  any  such  trial;  not  one.  We  have  treasured  the  right  of 
a  man  to  be  defended  in  court  by  some  one  competent  to 
defend  him,  yet  almost  none  of  them  had  any  such  chance. 
A  lot  of  inexperienced  boys,  going  out  with  their  lives  in  their 
hands  to  do  the  best  they  could,  and  caught  in  this  terrible 
malestrom  and  sacrificed.  The  least  the  American  people  can 
do  is  to  save  what  is  left  of  them,  and  do  it  quickly! 

I  want  to  refer  to  another  class  of  victims  of  the  war  feel- 
ing. Now,  mind,  I  am  not  criticising  the  feeling,  its  intensity 
or  its  cause.  I  fancy  I  was  a  part  of  it,  though  I  always  meant 
to  keep  my  head  during  it,  and  perhaps  did  fairly  well.  But, 
it  was  a  terrible  feeling  which  swept  over  the  world,  and 
moved  the  people  of  the  earth  as  they  were  never  moved  be- 
fore; it  was  a  feeling  which  made  men  forget  everything  but 
the  war;  they  would  forget  their  lives,  even  their  property, 
some  of  them;  their  families,  their  friends,  everything  but  the 
war.  And,  it  not  only  reached  our  military  courts,  but  our 
civil  courts,  and  barbarous  and  extreme  penalties  were  pro- 
nounced there,  which  ought  to  be  set  aside,  and  set  aside 
quickly!  For  expressing  opinions  against  the  war,  men  were 
subjected  to  a  penalty  of  twenty  years'  imprisonment.  And 
judges  always  pronounced  the  longest  term.  Once  in  a  while 
some  very  soft-hearted  man  would  make  it  ten. 

There  is  only  one  possible  excuse  for  it,  and  that  is  the 
excuse  that  I  have  heard  some  judges  make,  that  it  was  never 
intended  to  carry  them  out,  but  they  should  last  during  the 
war.  That  excuse  would  be  good  to  me  if  they  only  last  dur- 
ing the  war! 

The  Espionage  Act  is  manifestly  unconstitutional,  although 
the  courts  have  said  it  is  constitutional — it  makes  no 
difference  to  me  in  my  judgment  of  it;  I  might  very  likely  have 
held  it  constitutional  if  I  had  been  a  judge,  I  don't  know. 
But  I  would  have  held  it  constitutional,  like  a  railroad  ticket, 
"For  this  trip  and  train  only". 

The  Constitution  forbids  Congress  to  enact  any  law  in 
restraint  of  the  freedom  of  the  press  and  freedom  of  speech, 
and  nothing  can  be  plainer  than  that  this  was  a  law  restrain- 
ing the  freedom  of  speech  and  the  press.  It  does  not  need 
argument,  and  I  would  respect  the  judges  and  lawyers  more 
if  they  placed  it  on  the  line  of  public  necessity,  than  I  would 
if  they  make  the  miserable  quibbles  that  somehow  they  could 
distinguish  between  this  law  and  some  other  law,  and  that  it 
was  really  constitutional. 


16  "WAR  PRISONERS. 

I  have  said  to  you  that  I  believed  in  this  war  from  the 
beginning.  I  know  there  were  a  good  many  people  who  did 
not,  some  of  them  as  honest  as  I,  possibly  some  of  them  as 
intelligent;  I  would  not  say  about  that,  but  anyway,  as  honest. 
You  never  can  find  any  question  that  everybody  agrees  on. 
They  may  say  they  agree,  but  they  do  not.  There  is  always 
bound  to  be  a  difference  of  opinion  among  men  on  any 
subject;  that  comes  from  the  different  sized  hats  they  wear  and 
the  different  nervous  systems  they  got  from  their  great,  great, 
great  grandmother.  This  country  had  a  large  German  ele- 
ment; it  had  a  large  Irish  element,  hostile  to  England,  and  a 
large  Jewish  element,  hostile  to  Russia;  it  had  people  here 
from  every  country  on  earth  who  were  bound  to  be  influenced 
more  or  less  by  their  likes  and  dislikes  of  the  various  European 
countries  at  war.  Then,  we  had  people  who  did  not  believe 
in  war  in  any  way;  who  thought  they  were  pacifists,  but  who 
still  like  to  see  their  side  win,  although  they  would  not  admit 
it;  there  were  people  who  honestly  thought  that  the  United 
States  should  not  be  in  this  war.  Not  strange;  not  at  all 
strange.  It  would  be  strange  if  there  were  not  tens  of  thou- 
sands of  people  in  America  who  honestly  hdld  these  opinions. 
And  I  know  of  no  way  to  tell  whose  opinion  is  right  and  whose 
opinion  is  wrong.  The  only  way  I  have  of  knowing  whether 
your  opinion  is  right  is  by  comparing  it  with  mine.  That  is  the 
only  way  anybody  ever  has  of  doing.  I  am  willing  to  admit 
that  among  the  thousands  of  opinions  I  hold  there  is  very 
likely  somewhere,  some  one  of  them  twisted,  but  if  you  ask 
me  about  each  opinion  separately  I  can  defend  every  one  of 
them  and  be  sure  they  are  right.  And  that  is  very  reasonable 
because  if  I  could  not  defend  them  I  would  change  so  I  could 
not  be  wrong  from  my  own  standpoint. 

We  had  all  kinds  of  people  in  this  country,  with  all  kinds 
of  views.  Every  other  country  had  the  same,  but  perhaps  to 
a  smaller  degree  than  we  because  most  of  the  other  countries 
are  more  homogeneous  in  their  populations.  Men  and  women 
were  not  permitted  to  make  an  argument  or  speech  against  the 
war.  Of  course,  I  am  making  no  complaint,  I  had  perfect 
freedom  of  speech  during  the  war.  I  do  not  see  why  anybody 
else  should  complain;  I  did  not  have  any  trouble!  You  could 
discuss  the  war  perfectly  freely,  so  long  as  you  were  for  it! 
Now,  I  am  not  quarreling  with  that.  I  think  I  like  the  British 
method  better.  They  let  you  discuss  it.  If  it  got  too  hot,  they 
would  mob  you.  That  is  much  better  because  it  does  not  leave 
a  law  on  the  statute  books  to  do  mischief  after  it  is  over, 
know  perfectly  well  that  there  are  limits  that  must  be  placed 


WAR  PRISONERS.  17 

at  times  like  the  ones  we  have  passed  through  and  I  know 
perfectly  well,  if  the  law  does  not  place  the  limits,  men  and 
women  will  place  them!  So  it  is  small  difference  which  way 
it  is  done. 

For  instance,  a  great  many  people  did  not  believe  in  the 
draft,  in  conscription!  I  did  not.  Although  I  will  confess 
that  my  reason  was  not  quite  the  same  as  some  of  yours.  I 
thought  it  would  be  revolting  to  the  Americans,  and  we  would 
have  harder  work  getting  an  army  that  way,  and  still  I  also 
feel,  as  I  felt  then,  that  it  was  a  terrible  thing  to  make  a  young 
man  go  and  fight  in  a  foreign  land.  It  is.  I  believe  that  it 
was  necessary.  Whether  I  am  right  or  wrong,  nobody  can 
tell.  But  I  never  saw  the  time  that  I  did  not  know  perfectly 
well  what  it  meant  and  what  a  serious  thing  it  was.  I  was  a 
little  amused  by  many  people  of  my  age  or  even  younger,  who 
told  young  men  of  twenty  how  sorry  they  felt  that  they  were 
so  old  they  could  not  fight!  I  did  not  see  any  reason  why  they 
should  not  be  permitted  to  fight  if  they  wanted  to. 

There  were  people,  of  course,  who  did  not  believe  in 
conscription ;  who  felt  it  an  express  violation  of  their  individual 
rights.  And  it  is  not  at  all  strange  that  they  should  feel  that 
way.  Everybody  is  not  a  philosopher  and  cannot  go  to  the 
foundation  of  things,  and  I  do  not  know  as  I  could  if  I  had 
been  in  the  draft  age.  I  cannot  tell.  We  passed  these  laws 
and  enforced  them  drastically  because  in  the  opinion  of  the 
majority  in  power,  it  was  necessary  for  carrying  on  the  war. 
I  say  that  it  would  not  have  made  any  difference  whether  we 
passed  them  or  not.  In  times  when  a  country  is  at  war,  and 
when  people's  feelings  are  intense  over  the  war,  they  will 
not  permit  men  to  oppose  the  war  at  home;  I  do  not  care  who 
the  men  are,  it  would  have  made  no  difference.  Human  na- 
ture is  deeper  than  law,  and  if  these  laws  had  not  been  passed, 
it  would  have  been  dealt  with  outside  of  the  law.  That  was 
done  in  our  Civil  War.  As  wise  and  humane  and  kindly  a 
man  as  Lincoln,  found  Vallandingham,  who  was  running  for 
Governor  in  my  home  State  of  Ohio,  making  violent  speeches 
against  the  war;  he  was  taken  and  set  down  in  the  other  lines 
and  told  he  belonged  there.  Lincoln  had  the  right  to.  I 
don't  know  exactly  what  right  means.  People  talk  about 
rights.  He  had  the  power  to  do  it  and  he  did  it.  Over  and 
over  again  newspaper  offices  were  destroved;  men  were 
mobbed  during  the  Civil  War.  And  during  the  Revolutionary 
War,  a  large  number  of  people  were  forcibly  driven  from  the 
United  States  because  they  sympathized  with  the  revolution. 


18  WAR  PRISONERS. 

Why,  few  of  the  really  respectable  people  of  the  United  States 
believed  in  the  revolution!  That  was  carried  on  by  the  hood- 
lums and  George  Washington!  Preachers,  lawyers,  judges 
and  bankers  were  mostly  all  with  England.  Why  not?  They 
were  not  losing  anything.  New  Brunswick  was  settled  by  the 
loyalists,  who  were  driven  out  by  the  mobs  during  the  Revo- 
lutionary War.  They  did  not  need  any  law  for  it.  Human 
nature  is  law  enough  when  it  is  awakened.  Human  nature,  is 
deeper  than  law.  It  gets  back  to  the  very  fount  of  life  and  life 
depends  on  it.  It  has  always  happened  and  always  will  hap- 
pen. So,  whether  these  things  were  done  by  law  or  not,  made 
little  difference.  And  I  am  interested,  now  that  the  war  is 
over,  in  correcting  the  manifold  barbarities  which  grew  out  of 
the  frenzy  of  the  time. 

I  could  not  tell  you  how  many  men  and  women  have  been 
convicted  under  the  Espionage  Act.  I  do  not  know.  I  do 
know  that  in  the  temper  of  the  country;  in  the  temper  of  juries 
and  courts,  they  could  not  have  the  fair  trial  that  any  citizen, 
whether  American  or  otherwise,  ought  to  have.  I  know  they 
could  not  have  a  calm,  deliberate,  human  judgment  upon  the 
facts  of  their  cases.  I  know  that  for  some  trifling  offenses 
and  which  were  freely  allowed  before  the  war;  for  doing  what 
under  the  Constitution  of  the  United  States  every  citizen  had 
the  right  to  do  since  America  was  a  nation;  I  know  that  these 
sentences,  from  five  to  ten  years,  even  twenty  years,  were 
given,  right  and  left  to  all  comers,  almost  without  discrimina- 
tion. 

These  men  and  women  for  the  most  part  were  honest.  They 
were  speaking  their  convictions  as  much  as  I  was  speaking 
mine.  There  was  no  question  of  bravery  in  it.  They  were 
braver  because  it  does  not  take  bravery  to  go  with  the  crowd. 
The  newspapers  always  tell  about  the  fearless  judge  who 
hanged  a  man.  A  fearless  judge  who  hanged  a  man!  He  is 
fearless  so  far  as  the  man  goes,  but  he  may  be  a  coward  so  far 
as  the  newspapers  go.  We  might  as  well  say  "a  fearless  hunter 
who  killed  a  rabbit!" 

These  people,  for  the  most  part,  were  conscientious,  and 
they  were  brave,  and  largely,  they  are  in  prison  today.  You 
all  know  of  the  case  of  Eugene  Debs!  No  braver,  truer,  kind- 
lier man  ever  lived  than  Eugene  Debs!  No  such  man  ought 
to  be  in  jail  in  any  country,  unless  under  the  strongest  need, 
which  I  never  believe  existed  here!  And  certainly  it  cannot 
be  excused  when  all  need  is  gone.  You  remember  Kate 
O'Hare?  Ten  years  for  each  of  these.  She,  a  kindly,  humane, 


WAR  PRISONERS.  19 

intelligent  woman.  Rose  Pastor  Stokes,  who  has  not  yet 
reached  jail,  who  for  an  interview  in  the  Kansas  City  Star, 
which  did  not  reflect  her  opinions,  wrote  a  letter  to  the  Kan- 
sas City  Star,  which  they  placed  in  the  District  Attorney's 
hands  and  then  convicted  her  of  attempting  to  interfere  with 
the  draft;  no  chance  for  any  one  to  see  it,  unless  the  Kansas 
City  Star  gave  it  to  the  world.  Ten-year  sentence — ten  years. 

The  case  of  four  young  Russian  Jews,  three  boys  and  a 
girl,  is  specially  outrageous.  These  enthusiasts  were  circulat- 
ing leaflets  calling  on  the  Government  to  withdraw  our  soldiers 
from  Russia.  For  this  they  were  sentenced  to  twenty  years 
each  in  the  penitentiary.* 

*Appended  hereto  is  the  dissenting  opinion  of  Justice  Holmes  of 
the  Supreme  Court  as  published  in  the  daily  press.  This  was  concurred 
in  by  Justice  Brandies. 

Assume,  for  the  sake  of  argument,  that  in  times  of  war, 
what  any  of  these  said  should  not  have  been  said  because  it 
interfered  with  the  right  of  self-defense  of  a  nation.  What 
proportion  is  there  between  the  offense  and  the  penalty? 
What  relation  does  it  bear  to  the  administration  of  justice  in 
the  United  States?  So  far  as  meeting  out  justice  to  an  indi- 
vidual is  concerned,  it  is  simply  a  mockery.  If  it  is  a  question 
of  defense  of  a  nation,  then  the  need  is  gone.  The  prison 
doors  should  now  be  opened! 

Everybody  takes  advantage  of  a  war,  good  and  bad  alike. 
They  take  advantage  of  everything.  Everybody  is  edging  up 
on  you  in  this  world.  I  have  always  found  them  that  way; 
trying  to  put  something  over.  War  time  is  a  good  time  to  put 
over  prohibition!  A  good  time  to  put  over  any  old  scheme, 
under  the  necessities  of  war.  A  good  time  to  raise  the  price 
of  beef;  a  good  time  to  put  over  repression  of  free  speech;  a 
good  time  to  get  rid  of  agitators  and  disturbers.  Of  course,  if 
you  can  put  it  over  under  the  necessity  of  war,  then  you  are  all 
right,  anyhow.  Eternal  vigilance  is  the  price  of  liberty  as  well 
as  a  lot  of  other  things.  Men  have  to  be  everlastingly  watch- 
ful or  something  will  get  away  from  them,  if  they  have  it. 

Under  the  Espionage  Act,  advantage  has  been  taken  to  try 
and  convict  many  people  whose  offenses  were  not  against  the 
Espionage  Act  at  all.  Why  have  the  I.  W.  W.'s  been  unmo- 
lested year  after  year  in  this  country,  until  the  Espionage  Act 
was  passed  ?  And  then  everything  that  they  were  said  to  have 
done  since  their  organization  is  brought  in  as  an  offense  against 
the  government  and  against  the  law  that  is  only  two  years  old? 


20  WAR  PRISONERS. 

Why?  Somebody  wanted  them.  Maybe  they  ought  to  get 
them.  I  don't  know.  But  if  they  do,  it  ought  to  be  done  in 
the  clear  light  of  day!  It  ought  to  be  under  statutes  fitted  to 
their  case  and  not  as  a  war  necessity,  like  prohibition! 

The  Espionage  Act  has  done  its  work  and  is  now  a  nui- 
sance and  a  menace  and  should  be  promptly  repealed. 

There  is  one  other  class  that  I  want  to  speak  about.  They 
are  the  conscientious  objectors!  There  are  a  good  many  of 
them  in  jail.  I  think  they  should  be  released,  too.  Of  course, 
you  have  to  remember  in  all  this  discussion  my  premise — the 
war  was  right,  and  necessity  knows  no  law.  I  just  read  yes- 
terday a  very  able  address  on  the  conscientious  objectors, 
•which  was  full  of  poor  philosophy.  The  government  thought 
it  necessary  to  have  conscription;  it  had  the  power  to  have 
it  and  did  have  it.  Of  course,  they  had  the  power  to  say  who 
should  go  to  war,  provided  people  would  obey  it  and  go ; 
which  they  did.  The  statement  I  read  said  the  law  exempted 
only  conscientious  objectors  who  belonged  to  churches.  And 
that  this  was  because  they  thought  a  church  member  could  be 
better  trusted  if  he  was  a  conscientious  objector  than  others. 
That  was  not  the  purpose  of  the  law.  The  government  had 
the  power  to  make  any  provision  about  men  who  should  go  to 
war  that  it  wanted  to.  The  government  of  the  United  States 
provided  that  only  conscientious  objectors  in  regular  standing, 
in  some  well  known  religious  organization,  could  be  exempt. 
Why?  Because,  of  course,  there  were  tens  of  thousands  of 
people  in  the  draft  who  would  not  want  to  go,  and  would 
have  said  they  were  conscientious  objectors  when  they  simply 
did  not  want  to  go.  Had  the  government  provided  that  no 
conscientious  objector  could  be  sent  to  war,  of  course,  it  would 
have  been  a  loop-hole  for  tens  of  thousands  to  get  out  of  the 
terrible  burden  and  danger  of  going  to  fight.  Of  course,  I 
would  not  blame  any  of  them  for  doing  it;  although  I  am  glad 
they  went. 

That  law,  to  my  mind,  was  absolutely  reasonable.  There 
is  no  reason  for  exempting  a  conscientious  objector.  I  remem- 
ber having  a  talk  with  one  of  the  government  officials  about 
it,  in  reference  to  pardoning  some  of  them.  He  said  some  of 
them  used  it  because  they  were  afraid  to  fight.  Well,  I  said, 
if  I  was  doing  it,  I  would  pardon  a  man  who  believed  in  war 
and  who  was  afraid  to  fight,  sooner  than  I  would  a  man  who 
was  not  afraid  to  fight  but  had  some  foolish  notions  about  it. 
I  think  the  fact  that  a  man  is  afraid  to  fight  is  about  the  best 
reason  he  can  give.  It  is  a  reason  that  appeals  very  strongly 


WAR  PRISONERS.  21 

to  me.  Of  course  a  man  cannot  help  being  a  coward,  although 
physical  courage  is  very  common;  it  is  moral  courage  that  is 
rare.  Most  all  men  fight  well,  with  guns  and  with  their  fists. 
A  person  who  has  the  courage  of  his  convictions,  well,  he  is 
an  idiot,  and  cannot  be  afraid. 

Take  a  coward.  What  is  the  physical  process?  I  said  I 
am  a  mechanist.  A  man  is  a  machine;  he  gets  an  impression 
of  something  in  front  of  him;  it  sends  an  impression  from  the 
eye  to  the  brain  and  from  the  brain  to  certain  nerve  centers 
and  various  organs  of  the  body,  secretions  are  emptied  into 
the  blood  and  nervous  system  and  he  acts  mechanically.  Take 
a  cross  section  of  a  man's  blood  who  is  afraid  and  the  man 
who  is  normal.  They  do  not  look  alike.  Take  the  cross  sec- 
tion of  a  man's  blood  when  he  is  in  anger  and  when  he  is  nor- 
mal. They  are  not  the  same.  Nobody  does  anything  except 
from  mechanical  reasons.  Being  afraid  to  fight  is  simply  a 
reaction ;  nothing  else.  Certain  secretions  from  the  spleen  and 
other  organs  of  the  body  are  emptied  into  the  blood  in  fear, 
which  cause  a  reaction,  so  that  a  man  cannot  help  running. 
It  is  out  of  the  question  to  go  forward ;  he  has  to  go  back.  He 
is  no  more  responsible  for  it  than  a  manikin  is  for  its  actions; 
the  manikin  and  the  man  move  when  the  strings  are  pulled, 
and  that  is  all  there  is  to  it. 

The  coward's  case  is  better  even  than  any  of  the  rest;  but 
take  the  conscientious  objector.  In  the  first  place,  they  were 
conscientious.  Assume  they  were  conscientious.  All  of  them 
were  either  conscientious  or  afraid  to  fight.  Assume  they  are 
conscientious.  They  do  what  they  think  they  ought  to  do, 
whether  their  notions  are  right  or  wrong;  no  man  can  act  from 
a  higher  motive  than  to  follow  his  conscience,  such  as  it  is.  It 
is  a  vey  poor  guide  to  the  truth,  of  course.  About  the  poorest 
guide  to  truth  there  is,  because  conscience  is  made  up  of 
thousands  of  inherited  traditions,  that  come  from  the  Lord 
kows  where;  some  of  them  from  the  apes  and  some  of  them 
from  much  less  intelligent  ancestors;  but  it  is  the  best  we  have, 
and  none  can  do  better. 

The  man  who  conscientiously  believed  that  we  should  not 
have  been  in  the  war  and  believed  it  was  wrong  to  kill — there 
are  people  outside  of  the  insane  asylum  who  think  that — the 
man  who  conscientiously  believes  that  it  is  always  wrong  to 
kill  and  refuses  to  kill,  is  following  the  highest  law  that  is 
given  to  man  to  obey.  And,  while  the  law  might  have  been 
right,  in  my  opinion  it  was  right,  that  there  was  no  reason  for 
excepting  conscientious  objectors,  still  their  action  lacks  the 


22  WAR  PRISONERS. 

material  element  of  crime,  which  is  moral  turpitude.  They 
are  very  likely  braver  than  some  one  who  went  to  war,  be- 
cause there  are  some  people  who  went  to  war  because  they 
were  afraid  to  face  the  contempt  of  their  fellowmen. 

Some  people  believe  in  conscription  and  some  do  not. 
I  did  not,  at  first.  But,  whether  it  is  a  voluntary  system  or  a 
system  of  conscription,  it  is  all  conscription,  anyway.  Eng- 
land, out  of  five  million  soldiers,  raised  the  first  four  million 
by  volunteers.  But,  how  did  they  volunteer?  Some  of  them 
it  is  true,  volunteered  because  they  believed  in  it,  because  the 
picture  of  Belgium  and  France  furnished  an  emotion  which 
they  could  not  control,  and  perhaps  did  not  wish  to  control. 
Some  of  them  volunteered  out  of  a  sense  of  duty;  some  out  of 
conviction,  but  a  very  large  number  volunteered  because  life 
was  intolerable  if  they  did  not.  They  were  shunned  by  their 
neighbors  and  associates  and  their  friends;  they  were  refused 
jobs;  they  were  ostracised  by  society;  they  were  cut  off  from 
the  world.  That  is  conscription,  although  the  name  is  vol- 
unteer. 

When  you  meet  any  of  these  boys  face  to  face  and  they 
tell  you  the  truth,  they  will  tell  you  what  a  horrible  thing  it  is 
to  take  your  life  in  your  hands  and  fight.  I  have  the  greatest 
respect  for  those  who  did  the  fighting.  I  believe  they  did  a 
job  that  had  to  be  done,  and  that  whether  the  world  will  be 
better  for  it  or  not,  it  would  have  been  worse  without  it.  1 
have  feelings  of  respect  and  admiration  for  them  and  sorrow, 
too,  but  I  know  what  the  truth  is.  I  know  many  thousands  of 
them  did  not  want  to  go.  And  the  government,  at  least,  be- 
lieved that  had  they  not  used  conscription,  they  could  not  have 
assembled  an  army  in  any  such  time  as  was  needed  to  win 
the  victory. 

These  questions  ought  to  be  discussed  as  facts  and  not 
as  questions  of  sentiment.  You  cannot  settle  questions  that 
way.  Men  act  emotionally;  but  when  the  day  of  judgment 
comes,  they  should  look  at  the  facts  as  they  are.  It  was  my 
good  fortune  to  go  to  France  before  this  war  was  finished.  On 
the  lower  decks  were  several  thousand  troops;  not  officers  or 
shirkers,  like  the  rest  of  us  civilians  on  the  upper  deck,  but 
common  soldiers.  I  could  hear  no  laughter  there;  no  songs. 
They  were  calm  and  silent  and  wondering.  Of  course,  when 
they  got  into  camp,  they  did  the  best  they  could  with  life.  I 
have  seen  them  shaking  dice  while  the  cannons  were  booming 
around  them.  They  got  used  to  it.  But  the  boys  going  to 
war,  went  to  war  with  the  most  serious  thoughts  of  what  they 


WAR  PRISONERS.  23 

were  leaving  behind,  and  what  they  went  to  face.  I  remem- 
ber one  day  one  of  these  common  soldiers  suddenly  rushed 
back  to  the  end  of  the  ship  and  jumped  over  into  the  ocean 
and  of  course  was  lost.  This  showed  the  dread  he  had.  And 
there  was  a  dread  buttoned  under  the  jackets  of  most  of  them. 
It  was  a  hard  job.  Nobody  has  the  right  to  speak  of  it  lightly 
or  to  misinterpret  the  depth  of  the  sacrifice  or  the  reasons 
that  moved  the  boys. 

There  is  no  need,  after  the  war  is  over,  for  keeping  a  con- 
scientious objector  who  thought  he  was  doing  right,  or  a  man 
who  was  afraid  to  fight. 

There  are  a  lot  of  by-products  of  war;  some  of  them  good; 
some  of  them  bad.  Good  and  evil  in  this  world  come  in 
mixed  doses,  and  sometimes  you  cannot  distinguish  between 
the  good  and  the  evil.  The  thing  that  you  thought  was  evil 
may  work  for  good  and  the  thing  you  thought  was  good  may 
work  for  evil.  Everything  is  mixed  and  involved.  Every  one 
is  anxious  to  take  advantage  of  what  there  is.  A  strong  ele- 
ment of  society,  under  the  cry  of  a  sort  of  super-patriotism  is 
today  doing  all  that  can  be  done  to  crush  out  the  liberties  of 
the  American  people!  They  would  leave  it  an  offense  to 
speak  and  to  write  and  to  print;  under  the  guise  of  what  they 
call  patriotism,  they  would  say  institutions  must  not  change, 
and  yet  this  is  a  world  of  change.  They  would  seize  those 
whom  they  believe  to  be  against  them,  send  them  to  jail,  be- 
cause they  are  violating  the  powers  that  be.  They  would  in- 
discriminately deport  all  aliens  who  express  opinions  they  do 
not  wish  to  hear.  They  would  put  to  shame  the  founders  who 
dedicated  America  to  freedom  and  made  of  it  the  asylum  for 
the  poor  and  oppressed  of  every  land. 

Again  I  say,  eternal  vigilance  is  the  price  of  liberty!  Free- 
dom cannot  be  maintained  by  constitutions.  Bancroft,  in  his 
Constitutional  History  of  the  United  States,  wrote  down  long 
ago,  that  when  the  spirit  of  liberty  had  fled  from  the  hearts  of 
the  people,  real  freedom  was  sacrificed  under  the  forms  of  law! 

The  only  way  to  keep  liberty  alive  is  to  keep  it  alive  in  the 
hearts  of  the  people;  otherwise  it  must  perish  from  the  earth. 
The  world  has  gone  through  a  terrible  ordeal.  It  is  only  to  be 
expected  that  chaos  and  disorder,  all  kinds  of  conflicting  the- 
ories and  views  would  spring  from  it.  It  is  a  day  of  flux. 
Every  man,  every  party,  every  seat  and  every  ism,  is  trying  to 
get  the  best  out  of  a  chaotic  world. 


24  WAR  PRISONERS. 

In  the  midst  of  it  all,  those  who  can  think,  and  those  who 
dare  think,  above  everything  else  that  man  can  strive  for, 
ought  to  keep  alive  the  spirit  of  liberty  and  the  enthusiasm 
for  liberty!  For  it  is  only  in  the  open  discussion  and  the  free 
expression  of  views,  that  there  is  a  chance  to  find  the  truth. 
No  man  can  speak  his  convictions,  no  man  can  write  them, 
and  no  man  can  print  them,  with  the  fear  of  the  jail  in  his 
heart!  He  must  speak  them  freely  and  unafraid.  Even  if  he 
speaks  extravagantly  and  wildly  and  foolishly,  he  must  be  left 
to  do  it  freely,  or  the  world  will  lose  his  thought;  and  it  will 
lose  the  thought  of  the  greatest  and  bravest  who  have  done 
the  most  for  the  civilization  of  the  world! 

I  never  was  a  superpatriot — whatever  it  means.  For  me, 
this  country  is  the  best.  I  was  born  here.  I  have  lived  here 
all  my  life.  I  know  its  peoples;  was  raised  under  its  institu- 
tions; I  know  its  opportunities  are  greater;  its  freedom  has 
been  better;  for  me,  it  is  the  best  country  in  the  world!  But 
that  does  not  make  me  close  my  eyes  to  the  defects  in  this 
country!  Neither  does  it  make  me  close  my  eyes  to  the  vir- 
tues of  other  countries!  There  is  no  nation  so  wise  that  it 
cannot  learn  from  others.  There  is  no  individual  so  well  edu- 
cated that  he  cannot  learn  from  the  humblest  if  he  will  keep 
his  eyes  open  and  his  mind  free.  But  you  cannot  speak  in  the 
face  of  the  prison,  and  you  cannot  write  with  chains  around 
your  wrists!  And  we  had  better  give  up  every  institution  or 
system  that  we  strive  for,  rather  than  give  up  liberty! 

All  that  this  country  has  had  in  the  past;  all  that  it  has 
stood  for;  all  that  makes  life  worth  while,  came  from  freedom. 
And  it  will  be  a  sad  day,  indeed,  when  the  minds  of  the  people 
shall  be  so  deadened,  and  the  blood  of  our  people  shall  flow 
so  sluggishly  that  they  will  forget  the  old  traditions  and  safe- 
guards that  have  made  us  great.  It  will  be  a  sad  day,  when 
for  gold  or  power  or  institutions  or  social  systems,  we  will 
give  up  that  freedom,  without  which  human  life  is  of  no  avail! 


WAR  PRISONERS.  25 


Dissenting  Opinion  of  Judge  Holmes  of  U.  S.  Supreme  Court  in  case  of 
Abrams   et   al    vs.    U.   S. 

"I  do  not  doubt  for  a  moment  that  by  the  same  reasoning  that  would 
justify  punishing  persuasion  to  murder,  the  United  States  constitution- 
ally may  punish  speech  that  produces  or  is  intended  to  produce  a  clear 
and  imminent  danger  that  it  will  bring  about  forthwith  certain  substan- 
tive evils  that  the  United  States  constitutionally  may  seek  to  prevent. 
The  power  undoubtedly  is  greater  in  time  of  war  than  in  time  of  peace, 
because  war  opens  dangers  that  do  not  exist  at  other  times. 

"But  as  against  dangers  peculiar  to  war,  as  against  others,  the  prin- 
ciple of  the  right  to  free  speech  is  always  the  same.  It  is  only  the 
present  danger  of  immediate  evil  or  an  intent  to  bring  it  about  that 
warrants  Congress  in  setting  a  limit  to  the  expression  of  opinion  where 
private  rights  are  not  concerned.  Congress  cannot  forbid  all  efforts  to 
change  the  mind  of  the  country. 

"Now,  nobody  can  suppose  that  the  surreptitious  publishing  of  a 
silly  leaflet  by  an  unknown  man  would  present  any  immediate  danger 
that  its  opinions  would  hinder  the  success  of  the  Government  arms  or 
have  any  appreciable  tendency  to  do  so. 

"I  do  not  see  how  any  one  can  find  the  intent  required  by  the  stat- 
ute in  any  of  the  defendants'  words.  *  *  *  The  only  object  of 
the  paper  is  to  help  Russia  and  stop  American  intervention  there  against 

the   popular   Government not   to   impede    the  United   States   in   the   war 

that  it  was  carrying  on. 

"IN  THIS  CASE,  SENTENCES  OF  TWENTY  YEARS'  IMPRISON- 
MENT HAVE  BEEN  IMPOSED  FOR  THE  PUBLISHING  OF  TWO 
LEAFLETS  THAT  I  BELIEVE  THE  DEFENDANTS  HAD  AS  MUCH 
RIGHT  TO  PUBLISH  AS  THE  GOVERNMENT  HAS  TO  PUBLISH  THE 
CONSTITUTION  OF  THE  UNITED  STATES,  NOW  VAINLY  INVOKED 
BY  THEM. 

"Even  if  I  am  technically  wrong  and  enough  can  be  squeezed  from 
these  poor  and  puny  anonymities  to  turn  the  color  of  legal  litimus  paper, 
1  will  add,  even  if  what  I  think  the  necessary  intent  were  shown,  the 
most  nominal  punishment  seems  to  me  all  that  possibly  could  be  in- 
flicted, unless  the  defendants  are  to  be  made  to  suffer  not  for  what  the 
indictment  alleges,  but  for  the  creed  that  they  avow — a  creed  that  I 
believe  to  be  the  creed  of  ignorance  and  immaturity,  which,  when  hon- 
estly held,  as  I  know  no  reason  to  doubt  that  it  was  held  here,  but 
which,  although  made  the  subject  of  examination  at  the  trial,  no  one 
has  a  right  even  to  consider  in  dealing  with  the  charges  before  the  court. 

"Persecution  for  the  expression  of  opinion  seems  to  me  perfectly 
logical.  If  you  have  no  doubt  of  your  premises  or  your  power  and 
want  a  certain  result  with  all  your  heart,  you  naturally  express  your 
wishes  in  law  and  sweep  away  all  opposition.  *  *  * 

"Every  year,  if  not  every  day,  we  have  to  wager  our  salvation  upon 
some  prophecy  based  upon  imperfect  knowledge.  While  that  experi- 


26  WAR  PRISONERS. 

ment  is  part  of  our  system,  I  think  that  we  should  be  eternally  vigilant 
against  attempts  to  check  the  expression  of  opinions  that  we  loathe  and 
beleve  to  be  fraught  with  death  UNLESS  THEY  SO  IMMINENTLY 
THREATEN  INTERFERENCE  WITH  THE  LAWFUL  AND  PRESSING 
PURPOSES  OF  THE  LAW  THAT  AN  IMMEDIATE  CHECK  IS  RE- 
QUIRED TO  SAVE  THE  COUNTRY. 

"I  wholly  disagree  with  the  arguments  of  the  Government  that  the 
first  amendment  to  the  Constitution  left  the  common  law  as  to  seditious 
libel  in  force.  History  seems  to  me  against  the  notion. 

"Only  the  emergency  that  makes  it  immediately  dangerous  to  leave 
the  correction  of  evil  counsels  to  time  warrants  making  any  exception 
to  the  sweeping  command:  'Congress  shall  make  no  law  abridging  the 
freedom  of  speech*." 


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REC-DC.L  JUN29I95 


